Citation Nr: 0522145
Decision Date: 08/15/05 Archive Date: 08/25/05
DOCKET NO. 02-00 169A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an initial higher rating for the residuals
of a fractured right femur, currently evaluated as 10 percent
disabling.
2. Entitlement to an initial compensable rating for the
residuals of a fractured right humerus.
3. Entitlement to an initial higher rating for carpal tunnel
syndrome of the right hand, currently evaluated as 10 percent
disabling.
4. Entitlement to an initial higher rating for carpal tunnel
syndrome of the left hand, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Carolyn Wiggins, Counsel
INTRODUCTION
The veteran served on active duty from July 1973 to July
1999.
This appeal arises from a September 2000 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Fargo, North Dakota. During the pendency of his appeal,
the veteran moved to the State of Michigan and his appeal has
been forwarded to the Board of Veterans' Appeals (Board) from
the Detroit, Michigan, RO.
In his January 2002 appeal, the veteran limited the issues to
the initial evaluations for residuals of a fracture of the
right femur, residuals of fracture of the right humerus,
bilateral carpal tunnel syndrome, and service connection for
bilateral hearing loss and a left arm disorder.
The RO, in a July 2002 rating decision, granted service
connection for tinnitus. The Board in a December 2002 rating
decision denied service connection for a bilateral hearing
loss and a left arm disorder.
In November 2002, the Board undertook development of the
veteran's claims for higher initial evaluations, pursuant to
authority granted by 38 C.F.R. § 19.9(a)(2) (2002). However,
following completion of development but before the case came
before the Board for final appellate review, the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) issued
its decision in Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F. 3d. 1339 (Fed. Cir., May 1, 2003).
In that decision, the Court of Appeals invalidated 38 C.F.R.
§ 19.9(a)(2) as inconsistent with 38 U.S.C.A. § 7104 (West
2002). It found that the regulation, in conjunction with 38
C.F.R. § 20.1304 (2002), allowed the Board to obtain evidence
and decide an appeal considering that evidence, when it was
not considered by the Agency of Original Jurisdiction (AOJ),
and when no waiver of AOJ consideration was obtained. Based
on that decision of the Federal Circuit, the Board in
September 2003 remanded the claim for consideration by the RO
prior to adjudicating the claim.
The veteran's claims have been returned to the Board. The RO
completed the actions ordered in the September 2003 remand.
The claims are now ready for further appellate review.
Stegall v. West, 11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. The veteran's residuals of a fracture of the right femur
do not include fracture with nonunion, malunion or a false
joint. X-rays demonstrate soft tissue calcification in the
lateral aspect of the right hip. Motion of the right hip is
not limited to 5 degrees of extension or 45 degrees of
flexion by pain or during flare-ups.
2. The residuals of fracture of the right humerus do not
include evidence of nonunion, fibrous union, or recurrent
dislocation. X-rays reveal evidence of calcific tendonitis
of the right shoulder at the insertion site at the humeral
head. Range of motion of the right shoulder is not limited
to shoulder level, even with consideration of pain,
fatigability and flare-ups.
3. The veteran is right hand dominant and his carpal tunnel
syndrome causes moderate impairment of the median nerve.
4. The veteran's left hand is his non-dominant hand, and his
carpal tunnel syndrome causes moderate impairment of the
median nerve.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation, in excess of 10
percent, for residuals of fracture of the right femur have
not been met. 38 U.S.C.A. § 1110 (West 2004); 38 C.F.R.
§ 4.71a, Diagnostic Code 5010, 5251, 5252, 5253, 5255 (2004).
2. The criteria for an initial 10 percent rating, but not
more, for residuals of a fracture of the right humerus have
been met. 38 U.S.C.A. § 1110 (West 2004); 38 C.F.R. § 4.71a,
Diagnostic Codes 5003, 5010, 5201, 5202 (2004).
3. The criteria for a initial 30 percent rating, but no
more, for right carpal tunnel syndrome, have been met.
38 U.S.C.A. § 1110 (West 2004); 38 C.F.R. §§ 4.124, 4.124a,
Diagnostic Codes 8515, 8715 (2004).
4. The criteria for a initial 20 percent rating, but no
more, for left carpal tunnel syndrome, have been met.
38 U.S.C.A. § 1110 (West 2004); 38 C.F.R. §§ 4.124, 4.124a,
Diagnostic Codes 8515, 8715 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
As a preliminary matter, the Board finds that VA has
satisfied its duties to the appellant under the Veterans
Claims Assistance Act of 2000 (VCAA). A VCAA notice
consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about
the information and evidence that VA will seek to
provide; (3) inform the claimant about the information
and evidence the claimant is expected to provide; and
(4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim,
or something to the effect that the claimant should
"give us everything you've got pertaining to your
claim(s)." This new "fourth element" of the notice
requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18
Vet. App. 112 (2004).
The RO rating decision which denied the veteran's claims
preceded the passage of the VCAA. In April 2004, VA sent the
veteran a letter notifying him of the provisions of VCAA. In
the January 2002 statement of the case, and in the July 2002
and March 2005 supplemental statements of the case the
veteran was apprised of the evidence obtained and what
evidence was necessary to support his claims. The veteran
appeared and gave testimony at a hearing at the RO in July
2002. VA obtained the veteran's service medical facility
records and VA records of treatment. He was afforded VA
examinations in February 2000, March 2003, May 2004 and
January 2005 to determine the severity of his service-
connected disorders. The veteran has been furnished all the
intended benefits of VCAA. See generally Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
Any defect in notice of the veteran has been cured. There is
no prejudice to the veteran in proceeding to consider his
claims. For the reasons set forth above, and given the facts
of this case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
is not prejudicial to the veteran. 38 U.S.C.A. § 5103A(d);
38 C.F.R. § 3.159(c)(4).
Relevant Laws and Regulations: Disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.
Generally, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the several grades of disability. 38 C.F.R. § 4.1 (2004).
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004).
Arthritis, due to trauma, substantiated by X-ray findings, is
rated as degenerative arthritis. 38 C.F.R. § 4.71a,
Diagnostic Code 5010 (2004). Degenerative arthritis
established by X-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved. When, however,
the limitation of motion of the specific joint or joints
involved is noncompensable under the appropriate diagnostic
codes, a rating of 10 percent is for application for each
joint or group of minor joints affected by limitation of
motion, to be combined, not added under diagnostic code 5003.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. In the absence of limitation of
motion rate as below: With X-ray evidence of involvement of 2
or more major joints or 2 or more minor joint groups, with
occasional incapacitating exacerbations a 20 percent
evaluation is assigned. With X-ray evidence of involvement
of 2 or more major joints or 2 or more minor joint groups a
10 percent evaluation is assigned. 38 C.F.R. § 4.71,
Diagnostic Code 5003. The definition of major and minor
joints is set out in 38 C.F.R. § 4.45 (2004).
Limitation of motion of the major arm to 25 degrees from the
side is rated as 40 percent disabling. Limitation of the
major arm to midway between the side and shoulder level is
rated as 30 percent disabling. Limitation of motion at the
shoulder level for the major arm is rated as 20 percent
disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2004)
Other impairment of the humerus for the major arm with loss
of the head (flail shoulder) is rated as 80 percent
disabling. Nonunion of the major shoulder with false flail
joint is rated as 60 percent disabling. Fibrous union for
the joint of the major arm is rated as 50 percent disabling.
Recurrent dislocation at the scapulohumeral joint; with
frequent episodes with guarding of all arm movements, is
rated as 30 percent disabling for the major arm, with
infrequent episodes and guarding of all arm movements only at
shoulder level, as 20 percent disabling. 38 C.F.R. § 4.71,a,
Diagnostic Code 5202 (2004).
Impairment of the femur: fracture of the shaft or anatomical
neck with nonunion, demonstrated by loose motion is rated as
80 percent disabling. With nonunion, without loose motion,
weightbearing preserved with aid of a brace is rated as 60
percent disabling. Fracture of the surgical neck, with a
false joint is rated as 60 percent disabling. Malunion with
marked knee or hip disability is rated as 30 percent
disabling. Malunion with moderate knee or hip disability is
rated as 20 percent disabling. Malunion with slight knee or
hip disability is rated as 10 percent disabling. 38 C.F.R.
§ 4.71a, Diagnostic Code 5255 (2004).
Limitation of extension of the thigh to 5 degrees is rated as
10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code
5251 (2004).
Limitation of flexion of the thigh to 45 degrees is rated as
10 percent disabling. Limitation of flexion of the thigh to
30 degrees is rated as 20 percent disabling. 38 C.F.R.
§ 4.71a, Diagnostic Code 5252 (2004).
Impairment of the thigh with limitation of abduction, with
motion lost beyond 10 degrees is rated as 20 percent
disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2004).
Complete paralysis of the median nerve with the hand inclined
to the ulnar side, the index and middle fingers more extended
than normally, considerable atrophy of the muscles of the
thenar eminence, the thumb in the plane of the hand (ape
hand); pronation incomplete and defective, absence of flexion
of the index finger and feeble flexion of the middle finger,
cannot make a fist, index and middle fingers remain extended;
cannot flex distal phalanx of thumb, defective opposition and
abduction of the thumb, at right angles to palm, flexion of
wrist weakened, and pain with trophic disturbance: is rated
as 70 percent disabling for the major arm and 60 percent
disabling for the minor arm. With severe incomplete
paralysis a 50 percent rating is provided for the major arm
and a 40 percent rating for the minor arm. Moderate
incomplete paralysis of the major arm is rated as 30 percent
disabling, and 20 percent disabling for the minor arm. Mild
incomplete paralysis of the major and minor arms is rated as
10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code
8515 (2004).
Neuralgia of the peripheral nerves, characterized usually by
a dull and intermittent pain, of typical distribution so as
to identify the nerve, is to be rated on the same scale, with
maximum equal to moderate incomplete paralysis. 38 C.F.R.
§ 4.124 (2004).
In Fenderson v. West, 12 Vet. App. 119 (1999), it was held
that at the time of an initial rating, separate ratings can
be assigned for separate periods of time based on the facts
found, a practice known as "staged" ratings.
Factual Background and Analysis.
Residuals of Fractured Right Femur
A February 2000 evaluation indicated the veteran suffered
fractures of the right humerus and right femur when he was
pinned against a house by his car. The veteran complained of
right hip pain with weather changes. He reported a slight
limp with pain.
Range of motion of the right hip in May 2000 was reported as
to 110 degrees of elevation with pain at 110 degrees.
Abduction was to 30 degrees with pain at 30 degrees.
Extension was to 0 degrees with no pain noted. There was no
pain or in-coordination with exercise. There was no
excessive fatigability and no further loss of range of motion
with exercise.
In May 2000, no disorder of the right knee was found. Mild
decreased range of motion of the right hip was diagnosed.
X-rays of the right femur taken in February 2000 at a service
medical facility, revealed a long intramedullary rod in place
with a transverse screw distally over the femur. Proximally
there is a suggestion of some loosening of the intramedullary
rod with an area of lucency along the medial aspect of the
proximal rod at the neck/intertrochanteric region. The
fracture at the junction of the middle and distal thirds of
the femur is well healed.
In February 2000, range of motion studies of the knee
revealed right knee action with no evidence of pain with
exercise or range of motion. There was no evidence of
excessive fatigability or incoordination with exercise and
there as no significant further loss of range of motion with
exercise.
February 2001 VA records revealed the veteran had pain in the
right hip if he turned fast. He did not take medications for
any of his pain, only an occasional aspirin.
The veteran appeared and gave testimony at the RO in July
2003. He reported his right thigh ached when it was cold.
(T-4). He could not walk as much as he used to do
previously.
VA examination in March 2003 revealed the veteran complained
of a dull aching pain, where the plate in his leg was
located. Going up and down stairs or any type of physical
activity increased his pain. He was no longer able to hunt
or fish due to his leg pain. He had pain when getting in and
out of his truck. He did not have any weakness. He did have
some abnormal movement, he limped slightly and had some
guarding movements. Range of motion of the right hip was
from 0 to 100 degrees flexion and extension. Abduction and
adduction was from 0 to 25 degrees. External rotation was
from 0 to 50 degrees and internal rotation was from 0 to 35
degrees. There was no malunion of the right femur. There
was moderate impairment due to pain.
Impairment of the femur is rated under the criteria set out
at 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2004). The
veteran's residuals of fracture of the right femur are
currently rated as 10 percent disabling. A higher rating
than 10 percent, under Diagnostic Code 5255, requires either
evidence of nonunion, false joint or malunion. There is no
evidence or either nonunion, false joint or malunion of the
veteran's right femur. The X-rays demonstrate the femur is
well healed. The VA examiner in March 2003 explicitly stated
there was no malunion. For that reason a higher rating than
10 percent based on Diagnostic Code 5255, is not warranted.
The disability of the femur is rated based also on impairment
of the right hip and knee, if it is related to residuals of
the fracture. The VA examiner found no disorder of the right
knee. The veteran has reported right hip pain. In addition,
X-ray reports in March 2003 reveal calcification in the right
hip joint.
Traumatic arthritis is rated as degenerative arthritis.
Degenerative arthritis is rated based on limitation of motion
of the joint affected. 38 C.F.R. § 4.71a, Diagnostic Code
5003. The Schedule for Rating Disabilities provides
Diagnostic Codes for rating limitation of motion of the
thigh.
A compensable rating based on limitation of motion of the
thigh requires either limitation of extension to 5 degrees,
limitation of flexion to 45 degrees, or limitation of
abduction to 10 degrees. The range of motion of the right
hip, set out above, does not include any measurements which
meet those criteria.
In August 1998, the General Counsel in VAOPGPREC 9-98
explained that 38 C.F.R. §§ 4.40, 4.45 and 4.59 must be
considered when assigning evaluations under Diagnostic Codes
5003 and 5010. The General Counsel explained that when
rating the veteran's functional loss it must clearly be
explained what role pain played in the rating decision. See
Smallwood v. Brown, 10 Vet. App. 93, 99 (1997). The
functional loss due to pain is to be rated at the same level
as the functional loss where the motion is impeded.
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Under
38 C.F.R. § 4.59, painful motion is considered limited motion
even though range of motion is possible beyond the point when
pain sets in. Hicks v. Brown, 8 Vet. App. 417, 421 (1995);
See also Deluca v. Brown, 8 Vet. App. 202 (1995).
Even when considering limitation of motion based on pain or
due to flareups or fatigability, the criteria for a rating
higher than 10 percent for residuals of fracture of the femur
have not been met.
When the limitation of motion is not compensable a 10 percent
rating may be assigned, as in this case for involvement of a
major joint, such as the hip. 38 C.F.R. § 4.45, 4.71a,
Diagnostic Code 5003 (2004).
The Board reviewed the record and has concluded that staged
ratings are not for application, as there has been no
variation in the level of disability during the rating
period. Fenderson v. West, 12 Vet. App. 119 (1999).
An initial rating, in excess of 10 percent, for residuals of
a fracture of the right femur is not warranted.
Residuals of Fracture of the Right Humerus
The veteran's residuals of fracture of the right humerus are
currently rated as noncompensable. The Schedule for Rating
Disabilities provides compensable ratings for impairment of
the humerus with loss of the head, nonunion of the shoulder
joint, fibrous union or recurrent dislocation of the shoulder
joint. The claims folder does not include any evidence of
loss of the head, nonunion of the shoulder joint or recurrent
dislocations. A compensable rating based on 38 C.F.R.
§ 4.71a, Diagnostic Code 5202 is not warranted.
The Board next reviewed the claims folder to determine if the
evidence supported a compensable rating based on arthritis of
the joint.
September 1999 service medical facility records noted the
veteran was right hand dominant.
February 2000 X-rays revealed a sideplate fixation device
over the medial aspect of the humerus. Previous fracture of
the midshaft was healed. There were 8 transverse fixation
screws and a sideplate fixation device present. There was
some calcification suggested over the distal supraspinatous
tendon near the insertion site at the humeral head. The
impression was healed fracture with internal fixation plate
with some question of some calcific tendonitis at the right
shoulder.
February 2000 VA examination revealed range of motion of the
right shoulder to be 165 degrees of elevation, with pain at
155 degrees. Abduction was to 160 degrees with pain at 160
degrees. Internal and external rotation were to 80 degrees,
with pain at 70 degrees. The veteran was right hand
dominant. Range of motion of the elbows are from 0 to 145
degrees, with pain at 145 degrees. After exercise, pain
began at 142 degrees. There was no evidence of
incoordination or pain with exercise. There was no evidence
of excessive fatigability or significant loss of range of
motion with exercise.
VA examination in March 2003 revealed no malunion. Range of
motion of the shoulder in forward flexion was to 100 degrees.
Shoulder abduction was to 100 degrees. External rotation was
to 45 degree and internal rotation was to 50 degrees. X-rays
revealed an old healed fracture of the middle portion of the
right humerus with fixed plate and screws.
In this case, the earlier X-rays indicated there was
calcification over the distal supraspinatous tendon near the
insertion site at the humeral head. Even though it was not
found on the later X-rays in March 2003, the Board has
concluded there is evidence of traumatic arthritis of the
right shoulder.
The right shoulder does not demonstrate limitation of motion
at shoulder level. Shoulder level is illustrated to be at 90
degrees at 38 C.F.R. § 4.71, Plate I. Even with
consideration of pain, fatigability and flare-ups the
criteria for a compensable rating have not been demonstrated.
When the limitation of motion is not compensable, a 10
percent rating may be assigned, as in this case, for
involvement of a major joint, such as the shoulder.
38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5003 (2004).
An initial rating of 10 percent for residuals of a fracture
of the humerus is warranted. The Board reviewed the record
and has concluded that staged ratings are not for
application, as there has been no variation in the level of
disability during the rating period. Fenderson v. West, 12
Vet. App. 119 (1999).
Bilateral Carpal Tunnel Syndrome
The veteran's bilateral carpal tunnel syndrome (CTS) is rated
separately as 10 percent disabling for the right hand and 10
percent disabling for the left hand. Nerve conduction
studies conducted in July 1999 revealed the veteran
complained of numbness of the left hand when driving or
sleeping. Examination revealed mild weakness in the abductor
pollicis brevis on the left side. Tinel's sign was positive
on the left. The nerve conduction study revealed bilateral
CTS that was worse on the left.
Service medical facility records, dated in September 1999,
noted the veteran was right hand dominant. VA examination in
February 2000 also noted the veteran was right hand dominant.
In May 2000, the veteran gave a history of local steroid
injections which had helped for a time. He continued to note
his thumb, index finger and middle fingers fell asleep. It
occurred a "couple of times a week." No surgery to correct
his CTS had been performed. Nerve conduction studies in May
2000 revealed increased distal motor and sensory latencies in
the bilateral median nerves. The assessment was bilateral
medial entrapment, with neuropathy at the wrist.
February 2001 VA records noted the veteran had CTS. It was
worse when he was driving, but it was not that bothersome.
In July 2003, the veteran testified his hands woke him up at
night when he was sleeping. Sometimes they tingled. (T-7).
A VA examination in May 2004 noted the veteran did not have
complete paralysis. He had problems with his hands falling
asleep at night and going numb when he was driving. He had
less strength when he was driving. The assessment was the
veteran had moderate paralysis of each hand related to CTS,
bilaterally.
A January 2005 VA examination revealed the veteran had very
good strong handgrip and good pincer grip. Tinel's sign was
positive in both hands. Phalen's was negative. There was no
observable atrophy of the thenar and hypothenar muscle. He
had normal sensory function.
An EMG performed at VA in April 2005 was normal. Based on
the physical examination the VA examiner indicated he
believed the veteran had CTS and entrapment neuropathy of the
upper extremity, bilaterally.
The May 2000 nerve conduction study revealed entrapment of
the median nerve. Impairment of the median nerve is rated
under 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2004).
Impairment of the median nerve is based on whether there is
complete or incomplete paralysis. In May 2004, the VA
examiner noted the veteran did not have complete paralysis.
The veteran's bilateral CTS is also rated based on the side
affected, whether it is the dominant or non-dominant side.
The service medical facility records and post service
evaluations consistently noted the veteran is right hand
dominant. 38 C.F.R. § 4.69 (2004)
Incomplete paralysis is rated based on whether it is severe,
moderate or mild. The VA examiner in May 2004 characterized
the veteran's bilateral CTS as moderate paralysis of each
hand, bilaterally. Moderate incomplete paralysis of the
right (dominant) hand is rated as 30 percent disabling.
Moderate incomplete paralysis of the left (non-dominant) hand
is rated as 20 percent disabling. The criteria for a 30
percent rating for CTS of the right hand and the criteria for
20 percent rating for CTS of the left hand, are demonstrated
by the evidence.
The regulations specifically state that neuralgia,
characterized by intermittent pain, which is consistent with
the veteran's descriptions of his CTS, occurring several
times per week, it to be rated at a maximum equal to moderate
incomplete paralysis. For that reason, a higher rating than
30 percent for right hand CTS and a 20 percent rating for
left hand CTS, is not for application.
The Board reviewed the record and has concluded that staged
ratings are not for application, as there has been no
variation in the level of disability during the rating
period. Fenderson v. West, 12 Vet. App. 119 (1999).
ORDER
An initial rating, in excess of 10 percent, for residuals of
a fractured right femur is denied.
An initial 10 percent rating for a fractured right humerus is
granted, subject to regulations governing the award of
monetary benefits.
An initial 30 percent rating for right carpal tunnel syndrome
is granted, subject to regulations governing the award of
monetary benefits.
An initial 20 percent rating for left carpal tunnel syndrome
is granted, subject to regulations governing the award of
monetary benefits.
____________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs